HuffPo: TROs ‘Misused, Often Against Men’

Overall, this is a good article on the misuse of temporary restraining orders in custody cases (Huffington Post, 4/13/11).  It’s far from perfect, but it’s a step in the right direction.  The author, Liz Mandarano, is a lawyer in family court and knows whereof she speaks.

Importantly, she goes further than most others (me included).  She doesn’t just kvetch about the many wrongs of the TRO system, but she provides some worthwhile suggestions for change.  Some of those require changes to existing laws that only state legislatures can enact, but others can be done by individuals in individual cases.

Mandarano isn’t anti-woman; quite the contrary.  She sees TROs as valuable legal instruments that can save people from serious injury or even death, and of course in some instances, she’s right about that.

However, it is also an unfortunate truth that because they are incredibly easy to obtain, orders of protection are misused, often against men. And this false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.

She goes on to recite what most of us know – that TROs require little or no evidence of little or no harm to the “victim.”  A vague fear of future harm based on no objective threat is sufficient.

And the consequences for the target of the TRO are draconian.  He (it’s usually a man) can be tossed out of his house, taken away from his kids and his belongings, and denied access to important information he needs to defend himself.

Is he entirely innocent?  Does he have no record of abuse?  Are the allegations fabricated to gain the upper hand in a custody battle?  All that is his tough luck.

Mandarano recites the famous David Letterman case of 2005 in which a New Mexico woman got a judge to issue a TRO against the comedian whom she’d never met and who lived many states away.  And she mentions a pithy little fact that so many overlook about that case – “the issuing judge stood by his ruling.”

What?  How could that be?  How could he defend an order that was so flagrantly wrong?  The answer is simple – he complied with the law.  It’s an important point.  Many people conclude that the judge was nuts to issue such an order.  On the contrary, he did his job correctly; it was the law that was nuts.

Mandarano hits all the high points about TROs.  There are as many as three million of them issued each year in the United States.  They’re easy to get, tough to overturn, used as a tactic in custody cases, often baseless, but usually effective to establish who is the “primary parent.”

That last of course is one of the main reasons for their use in custody cases.  TROs keep Dad out of his kids’ lives for as long as six months and after that may restrict him to only supervised visitation for a longer time.  All that can add up to persuasive evidence that Mom is the primary parent and therefore should be the custodial one post-divorce.

But, in the eyes of the divorce establishment, there are other positives to wholesale issuance of TROs.  They serve as bargaining chips that force dads to accept less  in custody and more in spousal support; they line attorney’s pockets; they drain the man’s resources and place him on the defensive emotionally.  Mandarano goes on:

Given the foregoing, this problem is certainly one that our judicial system should address and remedy.

And that’s where Mandarano goes off the rails a bit.  Amazingly, she lays the failure of the legislative and judicial systems to remedy the misuse of TROs at the feet of men’s and fathers’ rights organizations.  Why?  We’re too strident, that’s why.  We use “vitriolic language” and “bombastic rhetoric.”

Well, I agree that websites supporting men’s and fathers’ rights often use intemperate language.  They also sometimes play fast and loose with facts.  I approve of neither and always try to be fact and logic-based and to avoid inflammatory words.  I do that because I think it’s the right way to persuade people who haven’t already made up their minds about the subjects discussed on this site.

But the notion that state legislatures would have done the right thing  by now if MRAs and FRAs had just played more nicely is (a) unsupported by any evidence (and Mandarano offers none), (b) highly unlikely and (c) contradicted by the last 40 years of feminism that have seen, among many other things, rape laws altered drastically to the tune of feminists singing “all men are rapists.”  If vitriolic rhetoric is so counterproductive, how’d that happen?

No, state legislatures’ failure to change TRO laws isn’t because those arguing for gender equality in family courts sometimes heat their rhetoric to the boiling point.  Those laws remain because organizations that perceive a benefit from them threaten dire consequences if they do change.  Those organizations include associations of family attorneys and feminist organizations that loudly proclaim their support for gender equality while opposing essentially every move toward parental equality in family courts.

Still, Mandarano offers some good – and some not so good – advice about how to attack the TRO system.

She again counsels toning down the rhetoric.  I agree.  The TRO situation is outrageous, but it’s  possible to convey outrage without alienating the person you’re talking to.  When MRA and FRA organizations lobby state legislature, they must assume that the people they’re addressing have an open mind on the subject.  They must address them in a calm voice using facts and logic to support their arguments.  Most importantly, they must make clear to each legislator their understanding that evidence-based TROs are sometimes necessary to protect people who need protecting.  Absent that clear message, they’ve lost their audience from the outset.

On the other hand, Mandarano’s call for studies to assess the extent of the problem is odd given the fact that she cited several such studies in her own article.  Is there a need for more?  Probably so, but activism against TROs doesn’t need to wait for them to be done and published.

Likewise, she encourages judges to sanction parties who perjure themselves.  Again, I couldn’t agree more, but my guess is that, if judges were going to do that, they’d have done so by now.  Their refusal to punish perjurers has always been a mystery to me, but there it is, and I don’t see it changing.

One of Mandarano’s good suggestions is one that’s slipped my mind in the past, but no more.  Targets of TROs issued on false or non-existent evidence can always sue their accusers.  The common-law torts of false arrest, false imprisonment, abuse of process, etc. are available and can dampen the enthusiasm of the false accuser.  Also, they’re tried in different courts than the custody case, so the typical family court prejudice against dads may not apply.

All in all, Mandarano’s piece is pretty good.  It has its misconceptions, but the gist is right – TRO laws need to be changed for everyone’s sake.

Thanks to Edward for the heads-up.

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